380

Meeting of the Attorneys.-Superior Courts: Vice Chancellor's Court.

without expressing an opinion on any privilege claimed by the House of Commons, or on the conduct of any of the parties who have incurred the displeasure of the House, is of opinion that the imprisonment of an attorney for acting in his professional capacity, in accordance with the decision of the courts of law, is most dangerons to the rights and independence of this profession and to the due administrasion of justice."

Mr. G. Law seconded it.

The resolution was carried with acclamation. Mr. Anderton moved the last resolution"That a petition embodying these resolutions be presented to the House of Commons; that the Incorporated Law Society be requested to allow the petition to lie in the hall of the society for signature: and that Mr. Freshfield be requested to present it to the house."

Mr. R. B. Follett seconded the resolution, and congratulated the meeting on the step which the House of Commons had now taken by means of a legislative enactment to settle these unhappy disputes.

Mr. Hamilton deprecated all idea of petitioning the House of Commons. They should at once address themselves to the Queen, praying that Her Majesty might be pleased to dissolve the parliament.

An amendment substituting an address to the Queen for a petition to the House of Commons was ultimately moved and seconded, then withdrawn, and afterwards moved again by other parties. After some discussion, however, the amendment, upon a show of hands, was negatived, the vast majority being in favour of the original resolution.

SUPERIOR COURTS.

Vice Chancellor's Court.

ASSIGNMENT OF COMPENSATION.

A. assigned to B. for valuable consideration, an annual sam, granted to him during pleasure of the grantors, as compensation for an office which A. had held, and which was abolished by act of parliament, and due notice of the assignment was given to the grantors: Held, upon motion before the hearing of the cause, that the assignment was valid in equity as between B. and A.'s general creditors.

This was a motion for an injunction to restrain the defendant Sir William Boothby, Receiver General of her Majesty's Customs, from paying to the other defendants, Charles Asprey, John Chart, or William Richard Browne, or any other person for their use, or the use of any of them, any monies in his Sir W. B.'s hands, for answering and paying the compensation allowance of 5007. a-year, which had been awarded and granted to the said W. R. Browne, on the abolition of his office of cocket-writer in the London Custom House; and also to restrain the said C. Asprey and J. Chart from proceeding at law against Sir W. Boothby for payment of said monies or any part thereof. The facts of the case were these: In the year 1831, the office of cocketwriter in the long room of the London Custom House, held for several years with large emoluments, by Mr. W. R. Browne, was abolished by the 1 & 2 W. 4, c. 40, and the annual sun of 5007. was by virtue of the 50 G. 3, c. 117, and the subsequent statutes for regulating the granting of pensions and compensations, awarded to him by the Commissioners of Customs, in pursuance of the authority of the Lords of the Treasury, as compensation, payable to him in equal quarterly payments by the receiver general. By two annuity deeds, dated respectively in September 1836, and May 1837, and duly executed and enrolled, Mr. Browne, in consideration of two sums of 600l. and 2007., granted to the plaintiff Tunstall two annuities, amounting together to 1057, for his (Browne's life,) and to secure payment thereof, he assigned his compensation

Mr. Lawrence stated the case of a client of his own, whose copyright had been infringed by Messrs. Hansard in the publication of a report by order of the House of Commons so recently as 1838, when, an action having been threatened, an interview was requested by the Solicitor of the Treasury, and a sum of 100 guineas awarded, not as an equivalent, but as a fine and acknowledgment on the part of Messrs. Hansard, for the wrong they had committed. If such a case had occurred in February 1840, and the compensation had been refused, what would have been said, if he had brought his action and retained, as he always did, the Solicitor General in the Com-allowance. Notice of the annuities and of the mon Pleas ?

Thanks were then voted to the chairman, and the meeting separated.

Besides the gentlemen who took part in the discussion as above reported, there were present at the meeting the following amongst many other well known members of the profession: B. Holme, B. Austen, M. Clayton, T. Dawes, T. Platt, sen, T. Tindal, E. L. Pemberton, W. Malton, J. S. Bockett, W. Woodrooffe, Sir G. Stephen, J. S. Gregory, J. J. Sudlow, E. S. Bigg, K. Barnes, G. L. Baker, G. Capron, C. Druce, J. Egan, A. W. Grant, A. Gordon, J. Leman, C. Stevens, C. J. Whishaw, T. Wiglesworth.

The petition lies for signature at the Incorporated Law Society, Chancery Lane.

assignment of the compensation was given at the Audit Office, Somerset House, soon after the execution of the deed, and to the Commissioners of Customs on the 5th of January 1838, and in that month, Mr. Browne, who had been arrested for a debt in November, 1837, was discharged, under the act for relief of insolvent debtors, and Asprey and Chart were appointed his assignees, to whom the Insolvent Debtors' Court made the usual assignment of the insolvent's estate and effects. Up to the month of April, 1839, Earle, another defendant in the cause, and also an annuitant of Browne, was in the habit of receiving the quarterly payments of his compensation allowance from the receiver general, aud applying it in payment of the annuities

Superior Courts: Vice Chancellor's Court: Queen's Bench.

for which he had a power of attorney from Browne. From that period, the assignees, Asprey and Chart, claimed to have the payments of the compensation made to them for the benefit of the general creditors of the insolvent, and they obtained orders of the Insolvents' Court for that purpose, under the 29th sect. of 7 G. 4, c. 57.

Mr. Richards and Mr. J. H. Palmer, in support of the motion, contended that the compensation allowance was well assigned to Tunstall for a bona fide valuable consideration, and that he had a prior claim on the fund in satisfaction of his annuities. They cited Alexander v. The Duke of Wellington,a to shew that the circumstance of the compensation being held during pleasure and revocable, would not render it incapable of assignment in a Court of Equity; and they were proceeding to refer to numerous authorities in which future and expectant interests and possibilities were held to be assignable, when

The Vice Chancellor said it was unnecessary to do so, as it was clear that the contingent nature of the interest would not prevent its alienation in this Court.

They then argued that the compensation allowance, not having reference to any future services, was distinguishable from military pay and half-pay, Stone v. Lidderdale, and that to prevent its alienation an express enactment was necessary, as in the cases of Chelsea Pensions (7 Geo. 4, c. 16, s. 26), Greenwich Pensions (10 Geo. 4, c. 26, s. 3), and Excise Pensions (7 & 8 Geo. 4, c. 53, s. 121). The Commissioners of Customs were purposely not made parties, as no compulsory order was asked against them.

Mr. K. Bruce and Mr. Coleridge, for the assignees, opposed the motion on the ground that the compensation allowance was not assignable, and that they were entitled under the orders for payment to them, which the Insolvent Court had made in pursuance of the 29th sec. The compensation allowance was in the order and disposition of the insolvent under the 30th section, notwithstanding the notice at the Audit Office. They also said that the Commissioners of Customs refused to recognize any assignments of pensions or allowances.

Mr. Wray, for Sir W. Boothby, submitted to such order as the Court would be pleased to nake, but considered that the Court could not interfere, as the allowance was a mere voluntary and revocable grant.

Mr. Richards, in reply, contended that the compensation was never within the 29th sec. of the insolvent act, because it had been well assigned to the plaintiff before the insolvency, and that the 30th sec. had no application.

The Vice Chancellor was of opinion that compensation was assignable, and that the assignment to the plaintiff was one which would be held a valid one in equity, and that the notices at the Audit Office was sufficient to complete it. He could make no order at present against either the Lords of the Treasury, or

a 2 Russ. & M. 35. b 2 Anstr. 541.

381

the Commissioners of Customs, so as to bind them, inasmuch at they were not before the Court as parties to this suit. The order therefore, which he should now make upon the present application was, that unless in the meantime the Lords of the Treasury or the Commissioners of Customs should make an order to the contrary, Sir W. Boothby should be restrained from paying over the monies for the quarterly payments of the compensation allowance in his hands, to the defendants Asprey and Chart, and that these latter defendants should also be restrained from taking any proceedings in the Insolvent Court or otherwise at law for the recovery of the same.

Tunstall v. Sir W. Boothby and others, Sittings at Lincoln's Inn, February 22d, 1940.

Queen's Bench.
[Before the Four Judges.]

REGISTRATION ACT.-INDICTMENT.

The 6 & 7 W. 4, c. 86, (the Birth, Marriage, and Death Registration Act) is compulsory in its provisions, and if the information required by that statute is withheld, the party withholding it is liable to indict

ment.

A public act which does require certain things to be done, but does not attach any specific penalty to the not doing of them, may be enforced by indictment.

This was an indictment against the defendant for having violated the provisions of the 6 & 7 W. 4, c. 86, the act relating to the registration of births, marriages, and deaths, by having refused to give the particulars of the birth of a child, pursuant to the 20th section of that statute.a The indictment stated that the defendant was the father of a child which had been born in St. Peter's district, Birminghamn. That Geo. Pinner was the registrar of that district. That in pursuance of the act he applied to the defendant and requested to be furnished with information respecting the time of the birth, the sex of the child, the names of the parents, and the business or profession of the father. That the defendant had no lawful excuse for not giving the required information, but intending to prevent the due execution of the law and the carrying into effect of the statute, he contemptuously and unlawfully wholly refused to give to the said Geo. Pinner the information so demanded of him. The indict

a By which it was enacted, "That the father or mother of every child born in England after the first day of March, 1837, or in case of the death, illness, absence, or inability, of the father or mother, the occupier of the house or tenement in which such child shall have been born, shall within forty-two days next after the day of every such birth, give information upon being requested so to do, to the said registrar, according to the best of his or her knowledge and belief, of the several particulars hereby required to be known and registered, touching the birth of such child."

382

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66

ment was found at the sessions, and the defend- the parents again to register them according ant then pleaded not guilty. The indictment was to the mode now provided by this act. Thus afterwards removed to this Court by certiorari, in the 18th section, after directing what the when a verdict of guilty was submitted to, sub-registrar is to do, and how his duties are to ject to the opinion of this Court on a case be performed, the act contains these words Two questions were originally intended to be touching every such birth or every such raised, namely, one relating to the evidence death, as the case may be, which shall have necessary to shew that Pinuer was the regis-been already registered." These last words trar of the district, and as such entitled to de- shew that where the birth has already been mand the information; and secondly, whether registered, the parents need not again register an indictment for this offence was sustainable it. So that if registered in the usual way by in point of law. The latter was the only ques- the baptism of the child in the church, it is tion argued and decided. The argument oc- clear that the act does not compel the parents curred in Michaelmas Term, 1839. again to go through the ceremony, and give information to the registrar of the district. It is matter of notoriety that in passing through the legislature the compulsory clauses were struck out on an objection raised to them by the most venerable church anthority in the land, and it is therefore matter of history that the legislature intended only to pass an act offering a perfect means of registry, but not compelling persons to adopt it.

The Attorney General in support of the indictment. The question whether this is an indictable offence seems to depend on two considerations. First, whether the stastute requires the information to be given, or leaves it optional with the parents to give or refuse the infor:uation; and secondly, whether if the information is required to be given, the withholding of it amounts to an indictable offence under the statute. It is clear that the statute did not intend to leave the giving or refusing of the information to the option of the parents. The act was passed for a public purpose: if the information may be withheld at the will and pleasure it may be withheld by the negligence of the parents. Then the object of the act may thus be defeated, either by the wilful folly or the utter carelessness of anybody. The legislature never could have intended such to be the case. Then if the act required the information to be given, | is the refusal to give it a matter which inay be made the subject of an indictment? It may. It is a principle of law, that where a public act directs something to be done for a public purpose, but does not provide any special penalty for the not doing of it, the party guilty of the disobedience to the act is punishable at common law by indictment. The law has thrown a duty on him which he must discharge. This rule is clearly recognised in all the text writers. The indictment is consequently sustainable.

Sir F. Pollock, contrà.--This is not an indictable offence. The general law so stated on the other side is not denied, but it is inapplicable in the present case. The act did not intend to compel all parties to register the births of their children, but only to give those who might be desirous of having the benefit of a complete register the opportunity to avail themselves of the means thus afforded by the legislature. The matter was left optional with the parties. This is proved by the fact that the statute does not put an end to all other modes of registration, and command that this new mode alone shall be adopted. Thus in the 18th section it recognises the existence of other nodes, and when children have been already registered under those the old nodes, it does not require

b Hawk. C. 6, s. 5; 2 Hawk. C 25, s. 4; 4 Bla. Com. 122; Rex. v. Robinson, 2 Burr. 799; Rex v. Boyer, ib. 832; Rex v. Davis, ib. 850; Rex v. Stubbs, 2 Term Rep 295; Rex v. Harriş, 4 Terın Rep. 202.

The Attorney General in reply.-The words referred to in the 18th section "not already registered" were meant merely to prevent two registrations of the same matter by different officers under this act. It did not abolish the church register, but for public purposes it provided that there should be a civil register of births, marriages, and deaths. Cur, adv. vult.

Lord Denman (in Hilary Terin, 1840) delivered judgment.-This was an indictment preferred against the defendant for not having given, in the manner provided by section 20 of the 6 & 7 W. 4, cap. 86, the information required by that statute, the Registration Act, to the registrar of the district concerning the birth of a child. Though in the course of the argument there did not appear to be in the minds of any of those who argued the case, any doubt that it was the general intention of the legislature to obtain this information, yet it was contended that the provisions of the statute were such as to leave it to the parties to give such information or not at their pleasure. But upon considering the provisions of the statute we cannot adopt that argument, and we think that the words of the 20th section are too strong to be got over. They declare that "the father or mother of every child born in England, or in case of the inability of the father or mother, the occupier of the house, &c., shall within forty-two days next after the day of the birth give information on being requested so to do, of the particulars required to be registered." It is the duty of the regis trar to require such information, and if he neglect the duties imposed upon him by the act, he will be liable to an indictment for neglect of such duties, the performance of which is not otherwise provided for in the statute. Now it is impossible for him to perform all the duties of his office if this information is withheld. The section gives direct and positive injunctions that the information shall be afforded. Here it is withheld, and looking at the general object of the law we cannot avoid

Superior Courts: Queen's Bench Practice Court; Exchequer.

holding that these injunctions must be obeyed | sworn before a person who appeared from the in this, which is a matter of great public con- declaration to be the plaintiffs' attorney, concern. The question here is, whether the de- trary to Reg. Gen. H. T 2 Wm. 4, s. 6. fendant has been brought within the provisions of the statute so as to be liable for the wilful though innocent refusal of obedience to its provisions. We think that he has been, and that the verdict must be entered for the crown. The Attorney General stated that the only object in this prosecution was to assert the law, and that in this case he did not press for more than a merely nominal punishment. The Queen v. Price, H. T. 1840. Q. B. F. J.

384 Superior Courts; Exchequer : Law Bills in Parliament: Editor's Letter Box.

MENT, WITH NOTES,

appearing whether the 50%. to be paid to the LIST OF LAW BILLS IN PARLIAplaintiff, was to go towards the costs of the plaintiff or of the defendant, or both; secondly, that in the former alternative, it was inconsistent; and thirdly, that the arbitrators had no power to award the taxation of costs to be made as between attorney and client.

Butt shewed cause, and contended that the award of 50%. to the plaintiff is in consideration of the expenses to which he will be put by the payment of costs on both sides. The arbitrators have power to award costs as they please, and they have chosen this peculiar mode of doing so; and this renders it perfectly consistent with the next part of the award that the plaintiff is to pay the costs both of himself and the defendant. As to the third objection, the arbitrators, it is true, had not power to order the costs to be taxed as between attorney and client; but is is competent for the Court either to read those words as meaning a taxation to be made in the usual way between party and party, or reject them as surplusage. Whitehead v. Frith.a

Warren supported the rule and contended, that the first part of this award amounts in substance to ordering a stet processus; after which comes the unintelligible provision that the defendant is to pay the plaintiff 50%. for costs, and the plaintiff to pay both his own and those of the defendant. Then with respect to the mode of taxation, it is clear that no arbitrator has power to award costs to be taxed as between attorney and client. Watson on Awards, pp. 133, 134.

Alderson, B.-That objection would only have the effect of setting aside the award so far. The case of Marder v. Cox,b seems to shew that that portion may be rejected.

Warren.-In that case the part relating to the costs was easily separable from the rest of the award, in which case the authorities all agree that the part in which the arbitrator has exceeded his authority may be rejected ;c Jackson v. Clarke. That, however, is not so here.

Parke, B-There is no difficulty about the two first objections. The apparent inconsistency is explained by the context, and the award means in substance that the plaintiff is to pay the costs on both sides, both of the cause and reference, together with the 251. to the arbitrator; as a partial indemnity for all which, he is to receive a sum of 501. from the defendant. But I am afraid that the third objection is fatal. The award of the taxation of costs as between attorney and client, is so connected with what goes before and what follows, that non constat, that the payment of 50%. by the defendant, was not part of the consideration for which it was awarded. It seems to be so connected with the benefit in tended to be granted to the defendant by this award, that we cannot venture to reject it. Rule absolute.-Seckham v. Babb, H. T. 1840 Excheq.

a 12 East, 165.

c2 Ch. Arch. 1262.

b Cowp. 127.

House of Lords.

Copyholds Enfranchisement. Ld. Brougham. [In Select Committee.]

Lord Denman.

Frivolous Suits Act amendment, touching costs.
[For second reading.]
Rated Inhabitants Evidence.
[In Committee.]
Vagrants' Removal.
[For third reading.]
Brighton Small Debts Court.
[In Committee.]

The letters of "An Attorney"; T. S. G.; X.; “Quid nunc"; H. H; “A Constant Reader"; and "A Copying Clerk," shall receive early attention.

Several communications have been printed, d 1 M'Clel. & Y. 200. but are unavoidably postponed.